People have
often mistaken the uncertain and non-predictive nature of the future as a
reason to not consider it.[1]
However, those who insufficiently consider the future will find themselves
reacting to it, rather than seamlessly adapting to, or possibly even shaping
it. Not only is the future relevant in its own right, but the way we think
about the future influences how we think and behave in the present.[2]
Thus, truly informative work about the future must do more than predict. It
must identify our pre-conceptions and assumptions about the present, and
challenge our understanding of how the future may unfold.

Intellectual
property (IP) researchers and practitioners seem concerned with what the future
will bring.[3]
Nevertheless, despite the reviews of the growing body of empirical literature
addressing historical and contemporary intellectual property issues,[4]
little is known about the extent and nature of literature considering the
future of intellectual property.

To
understand better the current thinking on the future of intellectual property,
this paper undertakes a systematic literature review, and provides
corresponding recommendations for future scholarship. To this end, first, we provide
an overview of what is meant by futures studies, foresight, and scenarios.
Second, we outline the methods used for our literature review and provide an
overview of our results. Third, we synthesise and analyse our findings. Fourth,
we discuss the implications of our review and explore an emerging trend to
consider the future in a more systematic way by using a tool called “scenarios”.
Fifth and finally, we conclude by considering the benefits and potential
disadvantages of using scenarios as a tool for exploring the future of IP.

2.
Futures Studies, Foresight and Scenarios

Dator’s
First Law of Futures holds: “The future cannot be predicted because the future
does not exist”.[5]
Nevertheless, different cultures, fields, and disciplines have all recognised the
future as an area worthy of exploration.[6]
Future exploration, also known by some as “futures studies”, has many forms.
While there is inconsistency around the terms describing different philosophies
and approaches to considering the future,[7]
this paper focuses on one way to consider the future—foresight.

“Foresight” is an umbrella term for a way of thinking about and
exploring the future according to a several core principles. Foresighting is
often contrasted to its predecessor forecasting. Forecasting practitioners
subscribe to the notion that given sufficient data, and the right algorithm,
they can analyse trends and predict the future such that the future becomes
relatively known. In contrast, foresight practitioners do not believe there is
only one future. They consider that the future can take various shapes and
forms depending on a multitude of factors, some known and some unknown. In the
practice of foresight, one does not try to collect sufficient data to make
accurate predictions about the future. Rather, one attempts to
understand the different possible futures that might unfold, and understand why
trends and factors may drive the future in one direction versus another equally
plausible one.

Championed
in the fields of management and futures studies, foresight is a powerful tool
and method to consider the future. After the Royal Dutch Shell Company popularised
foresight in the 1970s, multi-national corporations[8]
and governments[9]
have been its primary users in recent years.[10]
As these foresight users tended to practise foresight in confidential and
commercial ventures, foresight methods and theories remained obscured until
recently, when research projects, non-profit organisations, and grass-root
groups began to make use of these tools.[11]
As a result, there has been an increased discussion in the literature regarding
different ways to engage in foresight. To date, there are over thirty generally
accepted foresight methods.[12]
These range from scenarios, to road mapping, to SWOT analyses, to expert
panels, as seen in Figure 1.

Notwithstanding
the range of accepted methods, scenarios remain the most predominant way of
engaging in foresight.[14]
The ultimate goal of scenarios is to form different “stories” or narratives
that describe a plausible future state:[15]

Scenarios
are alternative stories of how the future may unfold. They are not predictions
or forecasts, but credible, consistent and challenging stories that help to
focus on the critical uncertainties and to understand the balance of forces
that will shape the future.[16]

The
significance of scenarios comes in large part from its ability to allow for,
and articulate, multiple possible futures. By describing multiple plausible and
differentiated scenarios, a scenario exercise ideally challenges its readers to
consider what assumptions they hold about how the future will unfold, and bring
to light relevant factors that may shape the future in a variety of
unpredictable ways.

Regardless
of the tools one uses, all foresight methods optimally identify uncertainties
that lie ahead. Thus perhaps the greatest contribution of foresight thinking is
that rather than treat uncertainties as a crippling obstacle to planning,
foresight embraces uncertainty. Foresight’s ability to re-contextualise
uncertainty in a way that gives it value is a utility that extends over a range
of disciplines and fields. As the goals of foresight are broad and
accommodating, foresight can be successfully used in a wide range of projects.
Foresight is about challenging how people think about the future, and perhaps
more importantly, how they act in the present.

Accordingly,
the value in foresight comes less from a resulting product, and more from the
potential to change the mind-set of those exposed to it:

To
operate in an uncertain world, people needed to be able to re-perceive –
to question their assumptions about the way the world works, so that they could
see the world more clearly…The end result, however, is not an accurate picture
of tomorrow, but better decisions about the future.[17]

Foresight
methods are becoming increasingly commonplace in scholarly research, especially
research focussed on achieving practical, policy-relevant results. One recent
research project provides a good example of the application of foresight
methods in a scholarly context: the Open African Innovation Research and
Training project, “Open AIR.” Between 2011-2014, the Open AIR project took a
two-pronged approach to investing the role of IP rights as a tool for
collaboration on the African continent. In addition to a series of empirical
case studies on current realities across 14 African countries, a network of
nearly 50 researchers embarked on a foresight exercise to construct plausible
scenarios for the future. The results of this exercise are reported in further
detail in the discussion section of this article. For now, it is merely notably
that this literature review of presenting thinking about the future of IP was
among the first steps toward that much broader scenario-building research. The
Open AIR project’s foresight research methods were inspired by work on a
related project investigating the future of agricultural genomics, the Value
Addition through Genomics and GE3LS project, VALGEN.

Given the
unique value of foresight over less methodical and rigorous ways of treating
the future, and its planned use as a key component of the Open AIR project’s
research methodology, this article asks how and to what extent IP scholars currently
consider the future. Moreover, this paper inquires to what degree the treatment
of the future in existing IP scholarship is congruent with foresight principles
and methods.

3.
Methods and Results

3.1
Methods

This
literature review considers how intellectual property researchers and
practitioners think about the future. To answer this question, we used general
literature review methods, canvassing both academic and grey literature on the
future of IP.[18]
The goal was not to conduct a comprehensive review of every possible work ever
written about the future of IP, but rather, to conduct a representative review
that illustrates dominant trends in this field. The databases selected reflect
our goal to explore the literature contained in an array of databases covering
different subject matters, not to exhaustively amass all potentially relevant
works. We selected both legal and non-legal databases to ensure we did not
overlook relevant works because of their disciplinary classification. And while
our list is not exhaustive, we consciously selected databases that include all
relevant disciplines and major journals germane to both intellectual property
and futures studies.

In our review
of the academic literature, we considered publications from the following five
databases:

·Social
Science Research Network (SSRN):
A publicly available database that covers a wide range of social science (including
legal) research and often publishes work that has not been published in peer
reviewed journals thus providing access to a broad range of works.[19]

·Business
Source Complete:
A database that provides access to journals on a wide range of business and
management topics, including works exploring strategic future planning.[20]

·ScienceDirect: A comprehensive general
database that reviews an array of subject areas within the social sciences,
humanities, science, and business studies.[21]

·Index to
Legal Periodicals and Books, Full Text:
A legal database that provides comprehensive coverage of the legal landscape
including interdisciplinary legal works. This database has international
coverage including journals from the U.S., Canada, Great Britain, Ireland, Australia,
and New Zealand.[22]

·Legal
Source: A legal
database offering a collection with a wide coverage of legal disciplines from
more than 880 full-text journals and 300 law reviews. Full-text coverage
includes the world’s most respected scholarly law journals.[23]

In
addition to reviewing the academic literature, this review considered the grey
literature. Grey literature includes published and unpublished material that
may not be included in academic databases, for example government reports and
white papers.[24]
We reviewed the grey literature by footnote chasing,[25]
and targeted searches. However, our search of the grey literature did not
include a review of the media; accordingly, sources such as blogs,
online news outlets, websites, and tweets were not included in the review. Generally,
we also excluded books from our analysis, although we nevertheless became aware
of relevant monographs, mainstream titles, and edited collections.

We
searched the databases and grey literature for works containing the keywords:
“intellectual property” or “copyright” or “patent” or “trademark” and “future”
or “foresight”. We selected these search terms to capture works that considered
intellectual property rights and systems as a whole, as well as work that
treated only one branch of intellectual property. Our keyword searches were
dictated by tensions between completeness and manageability. For example,
adding future-related terms such as “21st century” or “potential”
returned thousands of ostensibly irrelevant results; an impractical number for
meaningful analysis.

Where
possible, we searched for articles that contained the search terms in the
title, abstract, keywords or the text of the article itself. However, given the
differences in each database, we altered this parameter to fit the format of
each database while being as broad as possible.[26]
We searched only for English sources with no limitation as to time period.[27]
No qualitative screen was applied at this stage.

We screened
each result for relevancy and coded the results as either “relevant” or
“not-relevant”. We coded work that addressed the research question with any
degree of relevance as long as it considered the future of intellectual
property in any capacity, even peripherally. To aid with the coding process we
asked, “Does this work consider the future ofan intellectual
property issue?” or “Is this a paper that looks at the future of an
industry or topic, on which IP has some relevance?” We coded only the
former as relevant. Upon reviewing the results, it became clear that a large
body of literature contained the word “future” but did not consider the future of
IP rights, systems, laws, or policy and was thus not relevant to our research
question. We coded these works as “not relevant”.[28]

We
further classified all relevant works by their attributes (see Table 1). The
first division considered whether the work treated the future in a primary orancillary manner. This determination rested on how the work treated the
future. We coded a work as being primary where the future was central to
the analysis, formed a substantial and fundamental aspect of the thesis, or was
discussed for a majority of the paper. In contrast, we coded a work as ancillarywhere the future was auxiliary to the main thesis or thrust of the paper. In
these works, the author often treated the future as an afterthought, or only
discussed the future in the concluding section of a work focused on another
topic.

Next, we
asked whether primary works were conceptualising the future in a predictableor uncertain way. We coded works as predictable where the
future was understood as being the inevitable or likely consequence of a given
trigger or situation. These works did not necessarily predict the future per
se, but framed the future as following from a given stimulus in a linear
fashion. In contrast, uncertain works engaged with the future as an
unknown entity. Uncertain works acknowledged the possibility of multiple
plausible scenarios for the future.

Table 1:
Attributes of Relevant Works Addressing the Future of IP

Classification

Attributes

Ancillary

The
future is considered as an afterthought or secondary to the authors’ primary
analysis, usually discussed only in a concluding section of a work focussed
on current issues.

Predictable

The
future is considered as central to the analysis, but tends to be forecasted
in a linear manner, typically predicting effects of a particular cause or
causes.

Uncertain

Multiple,
challenging, plausible scenarios for the future are imagined, none of which
are predicted as inevitable but rather depend on systemic forces, often
external to IP.

We further
classified all works primarily about the future of IP according to other
characteristics. This included the geographic focus of the work, the breadth of
analysis of the future, and what factors or trends authors considered to drive
or shape the future.

The
geographic focus of each primary work was identified and coded as being either:local, national, regional, international, or global.
We coded works as regional where the authors considered countries that
were connected by either geography, such as North America, culturally, such as
Scandinavia, or politically, such as the European Union. In contrast, we coded
works as international where they dealt with at least two countries that
were not in the same region. We coded works as global where the work
treated the issue at large without emphasising regional or national delineations.

Next, we
classified each primary work by its breadth of analysis (see Table 2). We coded
work as being systemic, categorical, or issue-specific.

Table
2: Classification of Primary Works by Breadth of Analysis

Classification

Attributes

Examples of Topics

Systemic

The
work considers IP laws on a systems level, IP rights systems, or regimes.

Last, we
examined all primary works to determine the factors or trends that authors
identified as driving and shaping the future. We coded these as being: legal,
economic, technological/scientific, political, social, or religious/ethical. We
did not treat these drivers as mutually exclusive categories; we noted all
drivers that an author substantially engaged with.

3.2
Results

The formal
literature review returned 5,620 results. From the formal literature review
only 226 unique results were relevant to our research question (see Table 3).[29]
Our grey literature review uncovered three relevant works: the European Patent
Office (EPO)’s “Scenarios for the Future”, Gollin, Hinze and Wong’s
“Scenario Planning on the Future of Intellectual Property: Literature Review and
Implications for Human Development”, and Halbert’s article Intellectual
Property in the Year 2025.[30]
Thus, there were a total of 229 unique relevant results.

To
facilitate analysis and develop the recommendations presented at the end of
this article, we analysed the results of our literature review in light of the
characteristics and attributes described above. Our review of relevant works
identified several clusters of scholarship.

Relevant work
that considers the future of intellectual property often does so as an
afterthought or an addendum to a primary analysis.[32] As seen in Figure 2, the
overwhelming majority of works (87.3%) we identified as relevant considered the
future in an ancillary way.

Figure 2: Does the work treat the
future as a primary or ancillary issue?

As just one
illustration of this tendency, in “The ‘Compulsory Licence’ Regime in India:
Past, Present and Future”, Basheer and Kochupillai’s analysis of the future of India’s
licencing system is limited to the paper’s concluding remarks. Consequently,
this paper provides a limited analysis on the future of the compulsory
licensing regime in India.[33]

This
disjunctiveconsideration of the future may be interpreted in one of two
ways. The first is that exploring the future is not a central concern for
intellectual property scholars. Instead, considerations of the future are seen
as an appropriate way to conclude a work and give it relevancy going forward.
The second possible interpretation is that intellectual property scholars may
feel ill equipped to engage in a meaningful discussion on the future of
intellectual property. This is likely because those trained in IP are not
trained as futurists and cannot necessarily uptake futures methods when
treating the future of IP.

We coded
all primary relevant works by the breadth of the analysis. Primary works most
frequently considered categorical issues within IP (see Figure 3). Many works
considering the future of intellectual property consider the future of a
narrow, discrete area or future implications of a singular event. Some works
considered the implications of a specific legal case, as in Risch’s “Forward to
the Past” which considered the future of patent jurisprudence and innovation in
the United States following the Supreme Court decision in Bilski v Kappos.[34] Other works
considered the future of discrete events or areas of IP law, such as the future
of: open source software development;[35]
an opt-out copyright system;[36]
the Internet, specifically online services like Google and YouTube;[37] patent
information centres in Europe, specifically Bavaria;[38] database protection and
information patents;[39]
counterfeiting and privacy;[40]
and the well-known mark protection regime in China.[41]

Figure 3: What is the breadth of
works’ analysis of the future?

By identifying
a “cause” and then describing a correlated “effect”, categorical and
issue-specific works tend to consider the future in a predictive and linear way.
In fact, fewer than 1 in 5 unique relevant sources that did not consider the
future in an ancillary manner treated the future as open-ended and uncertain.[42]

Taken together,
this body of work creates a piecemeal image of the predicted future of IP. Some
of the topics addressed are quite distinct from one another and it is logical
to treat them discretely, such as the Bavarian patent system and well-known
marks in China. However, other topics, such as the future of an opt-out copyright
system and the future of open source software development, are interrelated and
will likely impact on one another. The effect of considering the future of some
of these areas separately is that it may be difficult to understand the ways in
which topics may overlap and impact one another. While this approach may be
natural for intellectual property subject matter experts, rather than
researchers experienced in the social science of future studies, it is not
ideal.

It is
apparent that the body of literature relevant to the future of IP is growing.
More than 91% of relevant works have been published since the year 2000. While
we have not correlated the growth trends of future-focused IP scholarship with
IP scholarship generally, it is not surprising to us that greater attention has
been paid to the future of IP following the 1994 Agreement on Trade-Related
Aspects of Intellectual Property (TRIPs).

The
literature we reviewed often considered factors that may drive the future of
intellectual property. These driving forces include copyright law,[44] human rights,[45] monopolies,[46] decreasing
concern for human health and environmental safety,[47] resistance of harmonised
international intellectual property regimes,[48]
legislative and jurisprudential changes in patent law,[49] and accelerated use of user-generated
content.[50]
Identifying the sources of change in intellectual property is essential in
considering the future of IP.

When
looking at the different possible drivers of the future that authors
considered, we can see in Figure 5 that legal, technological, and economic
drivers are the most treated in the literature. However, when we correlate the
drivers of the future by breadth of analysis, as seen in Figure 6, we see that
works considering categorical topics in IP also tend to most consider legal and
technological drivers. The type of topics that the categorical works explored
may explain this. Of the twelve works we coded as exploring a categorical
topic, eight of those looked at copyright issues. With this in mind, it makes
sense that authors would identify the future of copyright law as being driven
by technological advancements, as new ways of accessing and experiencing
copyrighted works will have an impact on our laws that govern them.

Figure 5: What factors drive
change and determine the future?

Figure 6: Which drivers of change
are considered in different analyses?

Also as
shown in Figure 6, works classified as systemic deal with the future of IP
systemically and tend to emphasise political and economic drivers of change,
while works focused on specific issues emphasise social drivers. Most works
consider factors and elements within intellectual property law, and
closely related fields, as drivers of change, such as economics and politics.[51]
With some exceptions such as Helfer’s work on human rights and intellectual
property,[52]
most discussion of the future is focused on factors internal to IP law, rather
than external driving forces. For example, none of the works we examined
appeared to consider the role of religious/ethical trends or factors in shaping
the future of IP. Similarly, only three papers considered the role of
environmental factors in shaping the future.[53]

This
introspective analysis imposes serious limitations on the ability of
intellectual property researchers to understand or enlighten their field of
study. In addition, in identifying forces that will drive future change, most
work considers the evolution or growth of a discrete aspect of intellectual
property law. As examples, works consider what will drive the changes of the
European Patent Documentation Group,[54]or disparate aspects of the future of American copyright law.[55] Few works
consider what will drive changes of the intellectual property regime on a
systems-based scale. Accordingly, most works that mention the future of
intellectual property are generally less relevant than they might otherwise be.

Table
4: Depth of the Works and the Result of the Analysis

Depth

Number of Works

Ancillary

200

Primary

Predictable

24

Uncertain

5

This
trend, however, appears to exist primarily in works that consider the future in
a predictive way. It is more common to see a greater variety of drivers of the
future considered in works that treat the future as uncertain (see Figure 7).
In fact, five of the seven kinds of drivers of change are present at least 80%
of the time in works treating the future as inherently uncertain. By
contrast, where a work was coded as predictable, the frequency of any
given driver being present dropped below 70%. Thus, where scholars acknowledge
the multiplicity of plausible futures they appear to take a more holistic
approach to considering the drivers of the future.

Figure 7: Do different drivers of
change correspond to the way the future is conceived?

Very few
of the works found in our literature review use a methodological approach to
thinking about the future of intellectual property, or take a specific
foresight approach, such as scenarios. Scenarios are essentially stories about
the way the world may turn out in the future, as previously discussed.[56]
While there are many different ways to construct scenarios,[57]
at their core, they are ways in which we can identify certainties and
uncertainties about the future, and examine our understanding of the different
ways in which they may unfold.

This
group of works includes: (i) Halbert’s “Intellectual Property Law, Technology,
and Our Probable Future”[58]
and “Intellectual Property in the Year 2025”[59];
(ii) Gollin, Hinze and Wong’s chapter “Scenario Planning on the Future of Intellectual
Property: Literature Review and Implications for Human Development” in Intellectual
Property and Human Development[60];
(iii) de Beer and Bannerman’s “Foresight into the Future of WIPO’s Development
Agenda”[61];
and (iv) the European Patent Offices’ “Scenarios for the Future”.[62]

Halbert’s
work systematically considers the future of intellectual property by creating
narratives of different future worlds—scenarios—to address possible future
realities. In “Intellectual Property Law, Technology, and Our Probable Future”,
Halbert contemplates the future of intellectual property law and technology by
exploring the issues through the lens of two different alternative scenarios. The
first scenario, “Business as Usual”, shows a trend towards all information
being treated as property. Halbert’s second scenario, “Hackers and the Future” illuminates
a world where one of the primary desires is to set information free and information
becomes a self-standing entity. In creating these scenarios, Halbert identifies
the importance of looking outside the law to develop an alternative discourse
on intellectual property. She explores how certain factors and constant
elements in IP discourse, namely the language of property and the legal system,
inform how we conceive, understand, and will shape the future of IP law. She
invites her readers to consider what may be constraining our vision of the
future, and challenges us to think outside traditional expectations and norms.

Halbert’s
second work, “Intellectual Property in the Year 2025” also uses scenarios to
discuss the future. Halbert’s goal in doing so is:

[To]
open a discussion on the contemporary state of intellectual property law and
how we would like to see it develop in the next twenty-five years. By defining
some of the possibilities, it becomes more likely that we can begin a
future-oriented debate that will bring us to our most desirable future.[63]

In this
article, Halbert outlines three scenarios, each of which builds off of a
different set of assumptions. She stresses the importance of futures work to
challenge our conceptions about the future and to recognise that it is unlikely
the future will be similar to today.

Gollin,
Hinze and Wong in “Scenario Planning on the Future of Intellectual Property:
Literature Review and Implications for Human Development” undertake a
relatively organic literature review, exploring the way in which scenarios have
been used to address the future of IP and development issues. The authors
define scenarios as stories that describe an alternative possible future
outcome.[64]
In this chapter, the authors mention Halbert’s work, the EPO scenarios, as well
as work exploring the future of agricultural systems and information
technologies.[65]

They conclude
their chapter by identifying three alternative futures for IP in the specific
context of development.[66]
In the first alternate future, Gollin, Hinze and Wong identify a world where
countries become compliant with the WTO’s regime in IP rights through an
incremental expansion of these rights.[67]
Their second future posits a broad expansion of protection for all types of IP
worldwide. In the authors’ third world, IP protection is reduced. Gollin, Hinze
and Wong use scenarios not only to explore the future of intellectual property
and development, but also as a way to organise and conceptualise the
conclusions of their research.

Similarly,
de Beer and Bannerman consider the future of international IP in the article “Foresight
into the future of WIPO’s Development Agenda”.[68]
This work addresses the future of the World Intellectual Property Organization
(WIPO) by exploring different plausible future worlds for WIPO’s development
agenda. Building on what participants in a scenario-building workshop identified
as two critical uncertainties, member state engagement and forum proliferation,
de Beer and Bannerman created four different, but possible, future states for
the year 2020, as seen in Figure 8.

De Beer
and Bannerman explain that these scenarios help conceptualise and better
understand uncertainties regarding the future of WIPO’s development agenda.
Furthermore, they argue that acknowledging different possible futures is
essential to be prepared for all possible futures, and will allow work towards
a preferred future.

Figure 8: Scenarios for the
Future of WIPO’s Development Agenda, based on member state engagement and forum
proliferation[69]

Last, the
European Patent Office’s “Scenarios for the Future”presents a
sophisticated analysis for the future of IP, and in particular, of the patent
system. This report identifies four possible futures for IP regimes in 2025, as
seen in Figure 9. These four scenarios all describe equally plausible future
states of IP regimes. These scenarios were made by building off of extensive
desk research, interviews, and collaborative workshops. EPO’s motivating goal behind
this project was to better understand the landscape of patent systems and the
future of patent systems and to stimulate questions for policymakers and
decision makers.[70]

Figure
9: Overview of four scenarios from the EPO’s “Scenarios
for the Future”[71]

In sum, our
systematic literature review reveals that the present thinking on the future of
intellectual property involves one or more of four distinct characteristics.
First, the future is rarely the primary focus of IP scholarship and is often ancillary
to another analysis. Second, the future is often addressed in the context of discrete
events or singular incidents. Third, while scholars and practitioners often
consider what will affect or drive the future of IP, they rarely look at the
effect of forces outside IP on IP. Fourth, an emerging group of work
creates stories, or scenarios, as a means of understanding different alternate
futures and the factors that will create them. These results provide a useful
building block upon which further qualitative research can be conducted. For
example, future work may consider exploring if there are any future scenarios
that tend to reappear among various studies, or what percentage of foresight
research at large considers IP issues.

Identification
of these characteristics helped to shape the scenario-building work of the Open
AIR network, referenced above, between 2011 and 2014. Having completed this
literature review and analysis while in the early and middle stages of that
project’s scenarios exercise, Open AIR researchers took special care to avoid
common problems and adopt best practices in respect of future-focused IP research.
Consequently, the Open AIR network produced three distinct and challenging but
equally plausible scenarios for the future of knowledge and innovation
systems—including but not limited to IP law—on the African continent. One of
these scenarios envisions a world of “Wireless Engagement”, which is a world
where African enterprise is interconnected with the global service-oriented
economy, young business leaders form a vocal middle class, and citizens hold
governments accountable. In contrast, in Open AIR’s scenario of “Informal – the
New Normal”, dynamic informalities cross every aspect of African societies, and
ideas constantly recombine within communities built upon interpersonal trust,
triggering innovations adapted to relentless change. And finally, in the third
scenario of “Sincerely Africa”, African communities ensure sustainability by
reinterpreting traditional knowledge systems, and tapping human and natural
resource riches in response to global instabilities and external pressures. Any
of these three scenarios could result from unpredictable interactions among a
number of key drivers of change: global relationships, statehood and
governance, identities and differences, infrastructure and technology, and
employment and livelihoods. Facilitated in part by the insights generated
through this literature review, these drivers of change and future scenarios
are juxtaposed against one another and the backdrop of the continent’s rich
historical legacies in Knowledge and Innovation in Africa: Scenarios for the
Future.[72]
This is the sort of methodical forward looking research we hope other scholars
might consider engaging in vis-à-vis other IP-related issues.

5.
Discussion

Our
analysis reveals that the characteristics of the literature on the future of IP
may be interpreted as recognising two distinct ways of thinking about the
future.

The first
three clusters of scholarship, when taken together, are indicative of a linear
way of thinking about the future. By failing to consider the future of
intellectual property in its own right, the body of literature on the future of
IP remains restricted and underdeveloped. Further, this insular way of thinking
about the future, results in a piecemeal view of the future, which explores discrete
pockets of IP systems and rights but lacks an overarching understanding of the
different forces that may drive future change. This type of future thinking
reinforces, rather than challenges, current thinking and assumptions, and draws
out consequences in a limited way.

In contrast,
the type of thinking represented by scenarios, which discuss the future as
provocatively uncertain, does the opposite. These works suggest multiple potential
futures and overtly avoid making predictions. Instead, these works challenge
our assumptions about how certain trends and factors might unfold and how
different futures may materialise. Accordingly, these works can take a
contextual and high-level view to areas within IP or IP as a whole, using
scenarios as a basis for their discussion.

While
scenarios can be understood as simply being stories about the future, scenarios
are also explained as a tool to engage in the practise of foresight. Foresight
is essentially a research method, which can be described as a process that
systematically looks into the long-term future.[73]

Despite
the increasing popularity of foresight, there is no consensus on the best way
to practise it. Originally, the private sector was the primary user of foresight
methods for corporate strategic planning purposes. Accordingly, information
regarding how foresight was conducted was confidential and inaccessible.[74]
However, now a wider range of stakeholders, such as governments and researchers
use foresight. It has become mainstream.

For
instance, Al Gore’s book, The Future: Six Drivers of Global Change, uses
foresight terminology and methods by identifying what he considers the six
factors that will drive the world’s future.[75]
Gore’s contribution to foresight joins other popularised authors, scholars and
foresight practitioners in working towards a deeper understanding of the
future, and attempting to distil the driving forces that will shape it. Other
authors working on IP or closely related topics have also begun to mainstream
future-focused analyses. The best examples are Steven Johnson’s recent book, Future
Perfect,[76]
which explores the principles underpinning the open design of the Internet and
their impact on the future, and Lawrence Lessig’s widely cited book, The
Future of Ideas: The Fate of the Commons in a Connected World, also about
the future of openness following the Internet revolution.[77]As
the use of foresight-related language and concepts become more widespread, more
information on what foresight is, and how to practise it, is publicly
available.

Our
review suggests that the current thinking on the future of intellectual
property remains limited. A
great deal of the current literature on the future of IP considers discrete
areas of IP in isolation, and does so in a narrow and linear way. This results
in a disjointed body of literature on the future of IP that does not adequately
engage with other disciplines and areas of practice that may have a real impact
on the future of IP.[78]However, the use of
scenarios in intellectual property scholarship and research can challenge readers
in a way that may change our current behaviour, and perhaps allow us to shape
the future of IP in a preferable way.[79]

6.
Recommendations

This
literature review has sought to illuminate the ways in which people think about
the future of intellectual property. As we begin to explore current thinking on
the future of IP, we can begin to recognise its limitations and obstacles.

In the
last fifteen years, there has been an emerging trend to think about the future
in a systematic way using scenarios, that is, stories and narratives about the
possible future.[80]
This approach to futures thinking displays a high degree of sophistication, as
these works consider issues within IP in a broader framework, and take a
contextual and higher-level approach to factors that may drive future change.

We
recommend that IP scholars explore the viability of using scenarios methods in
their research, or, at minimum, increase their awareness of the limitations of
the predominant modes of addressing “the future” in existing scholarship. Not
only is a scenarios-based approach to exploring the future likely to provide
more useful scholarly and practical insights, but also, by challenging
assumptions about current thinking by providing dynamic conceptions of more
than onepossible future, foresight methods have the potential to change
current behaviour.[81]

Implementing
a foresight initiative to conduct scenarios work can present some logistical
challenges. For example, where scenarios are created collaboratively with
extensive expert consultation, this type of research may be more expensive and
time consuming than legal research methods such as desk research and normative
commentary. However, this need not be the case. Although scenarios work is
sometimes done in workshops or collaboratively over long periods of time, as
was the case in de Beer and Bannerman and the EPO’s scenarios, it can also be
done by a single researcher or using desk research, as evidenced by the work of
Halbert and Gollins, Hinze and Wong.

This research
method is useful for not only IP researchers and practitioners, but also for
policy makers who have the power to shape intellectual property policies and
practices in a way that can transform economies and drive human development. Incidentally,
futures scholars and practitioners have begun to recognise the value scenarios
in legal thinking.[82]
Ramirez and Medjad explain that using scenarios may help legislators and
policymakers legislate in a more proactive and iterative way.[83]

The
future of intellectual property is necessarily uncertain. However, to
adequately practise, research, and legislate in the face of this uncertainty, the
role of IP scholars ought to be to challenge assumptions and pre-conceptions.[84]
Thus, going forward we suggest that traditional ways of thinking about the
future of IP be complemented by research that contextualises IP within a
broader socio-economic framework and recognises the myriad of possible worlds
the future may hold.

7.
Appendix A

Below is
a breakdown of the searches performed in each of the five academic databases
including any alterations made to our standard search parameters.

7.1
Social Science Research Network

The SSRN
search box was unable to handle complex Boolean strings. To accommodate this,
instead of completing one search, eight independent searches were done
recombining the search terms to cover all possible permutations. SSRN’s
e-library extends from 1996-present. This database was searched at the highest
degree of detail possible, which included searching in articles’ title,
abstract, abstract identification and keywords.

7.2
Business Source Complete

The
complete Boolean search string was used in this database, and we searched the
available time frame, which included from 1950-present. This database allows
for search terms to be used in all texts, and this was the level the search was
conducted at.

7.3
ScienceDirect

The
Boolean search string was used in its entirety for this database. Initially, we
searched for our search terms in all text fields. However, this proved
logistically unfeasible as 257,076 results were returned. Accordingly, we
modified our search and searched within the fields of title, abstract and
keywords. This resulted in 849 results, which were all screened for relevancy. The
time period available in this database was 1950-present.

7.4
Index to Legal Periodicals and Books, Full Text

This
database has texts available from 1981-present. When our search terms were
searched in all texts results we received 50,851 hits. As it was logistically
unfeasible to review all these results we modified our search for this
database. Accordingly, we conducted two searches:

·(“intellectual
property” or copyright or patent or trademark) in ABSTRACTS and (foresight or
future) in ALL TEXT FIELDS

·(“intellectual
property” or copyright or patent or trademark) in ALL TEXT FIELDS and (foresight
or future) in ABSTRACTS

This
ensured a comprehensive search while returning a feasible amount of search
results. These searches yielded 1,494 results, all of which were reviewed for
relevancy.

7.5
Legal Source

Similar
to the Index to Legal Periodicals and Books, Full Text search,the initial search in all text fields returned an unmanageable amount of
returns with 67,826 hits. Other variations of the search that included all text
fields returned amounts that were not feasible. The search was then refined to
the following:

·("intellectual
property" or copyright or patent or trademark)) in ABSTRACTS and (future
or foresight) in TITLE

· ("intellectual
property" OR copyright OR patent OR trademark) in TITLE and (future OR
foresight) in ABSTRACTS

This
search returned 655 results, all of which were reviewed for relevancy.

M
Bloch, “The Expansion of the Berne Convention and the Universal Copyright
Convention to Protect Computer Software and Future Intellectual Property”
(1985) 11 Brooklyn Journal of International Law 283-323.

M
Bloom, “University and Non-Profit Organization Licensing in the United States:
Past, Present and into the Future — Part I” (2011) 31:5 Licensing Journal
1-9.

M
Bloom, “University and Non-Profit Organization Licensing in the United States:
Past, Present and into the Future — Part II” (2011) 31:6 Licensing Journal
9-16.

E
Bock, “Using Public Disclosure as the Vesting Point for Moral Rights under the
Visual Artists Rights Act” (2011) 110:1 Michigan Law Review 153-174.

J
Boehm, “Copyright Reform for the Digital Era: Protecting the Future of Recorded
Music through Compulsory Licensing and Proper Judicial Analysis” (2009) 10:2 Texas
Review of Entertainment & Sports Law 169-211.

D
Bollier, “Why We Must Talk about the Information Commons” 2004:2 Law Library
Journal 267-282.

S
Chan, “Canadian Copyright Reform—’User Rights’ in the Digital ERA” (2009) 67:2 University
of Toronto Faculty of Law Review 233-264.

G
Cheliotis et al, “Taking Stock of the Creative Commons Experiment Monitoring
the Use of Creative Commons Licenses and Evaluating its Implications for the
Future of Creative Commons and for Copyright Law” (2007) TPRC 1-42
available at http://ssrn.com/paper=2102940.

N
Conley, “The Future of Licensing Music Online: The Role of Collective Rights
Organizations and the Effect of Territoriality” (2008) 25 John Marshall
Journal of Computer & Information Law 409-485 available at http://ssrn.com/paper=1417678.

R
Coombe, “Fear, Hope, and Longing for the Future of Authorship and a Revitalized
Public Domain in Global Regimes of Intellectual Property” (2003) 52:4 DePaul
Law Review 1171-1191.

K
Crews, “Copyright Law and Information Policy Planning: Public Rights of Use in
the 1990s and Beyond” (1995) 22:2 Journal of Government Information 87-99.

K
Crews, “Looking Ahead and Shaping the Future: Provoking Change in Copyright
Law” (2001) 49:2 Journal of the Copyright Society of the USA 549-584
available at http://ssrn.com/paper=1773017.

J
Cromer-Young, “Review of James Boyle’s the Public Domain: Enclosing the Commons
of the Mind” (2011) 1:2 The IP Law Book Review 50-53 available at http://ssrn.com/paper=1866042.

G
Dinwoodie, “The WIPO Copyright Treaty: A Transition to the Future of
International Copyright Lawmaking?” (2007) 57:4 Case Western Reserve Law
Review 751-766.

G
Dinwoodie and R Dreyfuss, “The WTO, WIPO, ACTA and More” in A Neofederalist
Vision of TRIPS: The Resilience Of The International Intellectual Property
Regime (Oxford: Oxford University Press, 2012) 143-203.

G
Dolin, “Exclusivity Without Patents: The New Frontier of FDA Regulation for
Genetic Materials” (2013) 98:5 Iowa Law Review 1399-1465.

D
Dunner, “The U.S. Court of Appeals for the Federal Circuit: Its Critical Role
in the Revitalization of U.S. Patent Jurisprudence, Past, Present, and Future”
(2010) 43:3 Loyola of Los Angeles International & Comparative Law Review
775-784.

P
Fowler and A Zalik, “A U.S. Government Perspective Concerning the Agreement on
the Trade-Related Aspects of Intellectual Property: Past, Present and Near
Future” (2003) 17:3 St John’s Journal of Legal Commentary 401-415.

A
Fox, “The Economics of Expression and the Future of Copyright Law” (1999) 25:1 Ohio
Northern University Law Review 5-26.

H
Grosse Ruse-Khan, “Access to Knowledge under the International Copyright
Regime, the WIPO Development Agenda and the European Communities’ New External
Trade and IP Policy” in E Derclaye (ed), Research Handbook on the Future of
EU Copyright (Northampton: Edward Elgar Publishing Inc, 2009) 574-612.

S
Henry, “The First International Challenge to U.S. Copyright Law: What Does the
WTO Analysis of 17 U.S.C. § 110(5) Mean to the Future of International
Harmonization of Copyright Laws Under the TRIPS Agreement?” (2001) 20:1 Penn
State International Law Review 301-327.

H
Krestel, “Patent Information Today and in the Future – A Survey of Small and
Medium-Sized Enterprises in Bavaria” (2001) 23 World Patent Information
29-34.

K
Kruckeberg, “Copyright ‘Band-Aids’ and the Future of Reform” (2011) 34:4 Seattle
University Law Review 1545-1574.

S
Kumar, “Border Enforcement of IP Rights Against in Transit Generic
Pharmaceuticals: An Analysis of Character and Consistency” (2009) European
Intellectual Property Review, Forthcoming available at http://ssrn.com/paper=1383067.

M
Meller, “Commentary on the Future including the Need and Possibility of a
Global Patent” (2000) 9:4 Federal Circuit Bar Journal 606-613.

P
Menell, “Envisioning Copyright Law’s Digital Future” (2003) 46:1/2 New York
Law School Law Review 63-199 available at http://ssrn.com/paper=328561.

P
Menell, “Forty Years of Wondering in the Wilderness and No Closer to the
Promised Land: Bilski’s Superficial Textualism and the Missed Opportunity to
Return Patent Law to its Technology Mooring” (2011) 63:6 Stanford Law Review
1289-1314.

E
Priest, “The Future of Music and Film Piracy in China” (2006) 21 Berkeley
Technology Law Journal 795-871 available at http://ssrn.com/paper=827825.

R

A
Rai, J Allison and B Sampat, “University Software Ownership and Litigation: A
First Examination” (2009) SSRN Electronic Journal available at http://ssrn.com/paper=996456.

K
Raju, “Is the Future of Software Development in Open Source? Proprietary vs.
Open Source Software: A Cross Country Analysis” (2007) 12:2 Journal of
Intellectual Property Rights 199-211 available at http://ssrn.com/paper=985237.

R
Thomas, “Vanquishing Copyright Pirates and Patent Trolls: The Divergent
Evolution of Copyright and Patent Laws” (2006) 43:4 American Business Law
Journal 689-739 available at http://ssrn.com/paper=1114104.

C
Thompson, “Orphan Works, U.S. Copyright Law, and International Treaties:
Reconciling Differences To Create a Brighter Future for Orphans Everywhere”
(2006) 23:3 Arizona Journal of International & Comparative Law 787-852.

A
Torrance, “Intellectual Property as the Third Dimension of GMO Regulation”
(2007) 16:3 Kansas Journal of Law & Pubic Policy 257-285 available
at http://ssrn.com/paper=1274264.

H
Travis, “Opting Out of the Internet in the United States and the European
Union: Copyright, Safe Harbors, and International Law” (2008) 83:4 Notre
Dame Law Review 331-407 available at http://ssrn.com/paper=1221642.

* Associate Professor, University of Ottawa. The authors thank Shirin
Elahi, Rafael Ramirez, David Castle, and two anonymous peer reviewers for
sharing their insights on scenarios and/or comments on this article, and the
Social Sciences and Humanities Research Council (SSHRC), Genome Canada via the
Value Addition through Genomics and GE3LS (VALGEN) project, International
Development Research Centre (IDRC), and Gesellschaft fuer Internationale
Zusammenarbeit (GIZ) for funding that supported this research.

** Research Fellow, Open African Innovation Research and Training
Project, University of Cape Town/University of Ottawa.

[28] For example: S Liebowitz and S Margolis, “Seventeen Famous
Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network
Effects” (2004) bepress Legal Series 397-422; H Travis, “The Future
According to Google: Technology Policy from the Standpoint of America’s
Fastest-Growing Technology Company” (2009) 11 Yale Journal of Law &
Technology 209-227; M McKenna, “Testing Modern Trademark Law’s Theory of
Harm” (2009) 95 Iowa Law Review 63-117.We sought to
attain a high degree of inter-coder reliability by ensuring the coding was
performed by a small team of two researchers. One researcher acted as the lead,
coding the majority of the data while delegating only a smaller amount of work
after training the second researcher. Further, selective qualitative audits
were performed throughout the process to ensure consistent results were
produced.

[29] The relevant results exclude duplicate findings. However, the
aggregate totals do not take into account duplicate results. Accordingly, there
may be a small margin of error when attempting to calculate the percentage of
relevant sources within the search results, and this percentage may be smaller
than it would if the aggregate results also did not contain duplicate results.

[30] European Patent Office, “Scenarios for the Future”(2007)
available at http://www.epo.org/news-issues/issues/scenarios.html
(accessed at 12 Apr 13); M Gollin, G Hinze and T Wong, “Scenario Planning on
the Future of Intellectual Property: Literature Review and Implications for
Human Development” in T Wong and G Dutfield (eds), Intellectual Property and
Human Development (New York: Cambridge University Press, 2011) 329-365; D Halbert,
“Intellectual Property in the Year 2025” (2001)49 Journal of the
Copyright Society of the USA 225-258. We found the EPO’s
publication through footnote chasing and targeted searches. We found Gollin,
Hinze and Wong’s chapter through a targeted search as a result of a published
book review uncovered in our academic literature review (A Nuvolari,
“Intellectual Property Rights and the Life Science Industries: Past, Present
and Future – by Graham Dutfield” (2010) 63:4 The Economic History Review 1165-1166;
B Keele, “Review of Intellectual Property and Human Development: Current Trends
and Future Scenarios” (2011) 39:1 International Journal of Legal Information98-100). Halbert’s article was found as a result of a targeted search.

[37] H Travis, “Opting Out of the Internet in the United States and the
European Union: Copyright, Safe Harbors, and International Law” (2008) 84:1 Notre
Dame Law Review 331-408; R Reis, “Progress, Innovation and Technology: A
Delicate ‘Google’ Balance” (2011) Buffalo Intellectual Property Law Journal,
Forthcoming.

[38] H Krestel, “Patent Information Today and in the Future – a Survey
of Small and Medium-Sized Enterprises in Bavaria” (2001) 23 World Patent
Information 29-34.

[43] The reduction in relevant articles in the last time frame (2010s)
is likely due to that time range only including four years, 2010-2013. It
should also be noted future studies tremendously grew in popularity in the
1970s.

[44] J Garon, “Google, Fairness and the Battle of the Books” (2010) The
IP Book 41-61.

[55] T Bell, “Pirates in the Family Room: How Performances from Abroad,
to US Consumers, Might Evade Copyright Law” (2011) 18 Southwestern Journal
of International Law 245-252; J Garon, “Google, Fairness and the Battle of
the Books” (2010) The IP Book 41-61.